Squirt Gun Bans Wont Stop Violent Crime:

Denvers "Mr. Wilson laws" are Empty Shells

Executive Summary

Last May, City Councilperson Cathy Reynolds announced that she would
introduce legislation to make parents responsible for gun misuse committed by their
children. But two new "gun control" ordinances introduced by Councilwoman
Reynolds do nothing of the sort.

Instead, the bills make it illegal for parents (or anybody else) to allow
minors to touch a weapon.

The definition of "weapon" includes not only firearms, but also
sling shots, BE guns, paint pellet guns, dart guns -- and shoes! Criminal law as conceived
by Mr. Wilson from Dennis the Menace.

Activities prohibited with these "weapons" include hunting,
target shooting, plinking, cleaning the weapon, or transporting the weapon through the
city of Denver. Even gun safety training would be unlawful.

The ordinances attempt to avoid conflict with the Constitutional right to
bear arms for self-defense, by allowing a minor to shoot a criminal who is actually
attacking her. But the right to self-defense is nearly meaningless if the minor is
forbidden to learn how to shoot. Just as the right to a free press includes the right to
learn how to read, the right to keep and bear arms includes the right to learn how to
shoot.

By requiring that firearms, but not other equally dangerous items, be
locked up, the "gun lock" ordinance amounts to unconstitutional discrimination,
like the Louisiana law which taxed only newspapers.

I. Introduction

Everyone wants to crack down on firearms violence perpetrated by gang members, and
everyone wants to do what is possible to reduce firearms accidents involving children. Two
bills recently introduced before the Denver City Council purport to address these
problems, but fire wide of the mark. The bills "crack down" on innocent persons
with incredible severity -- even making it illegal for a 16-year-old to shoot a
BB gun
with his father -- or even to touch his fathers BB gun. At the same time, the
proposed ordinances add nothing of significance to the arsenal of laws already usable
against gang members.

This Issue Paper first analyzes the scope of "weapons" covered under the
proposed ordinances, and details how the ordinance covers not only firearms, but also
"weapons" which are not exactly the "weapon of choice" of gang
membersBB guns and slingshots. Antique pistols and black powder firearms.

BB Guns. Both bills include within their scope every
"air gun," "gas-operated gun," and "spring gun." As a
result, minors are forbidden to possess BB guns. [BB guns may be powered by compressed
air, carbon dioxide gas, or a spring.] There is no plausible evidence that BB guns
are a serious crime or accident problem. It is silly to claim to crack down on gangs
by making it illegal for a father and son to shoot a Red Ryder BB gun in the backyard.

Do the proposed BB gun prohibitions add anything to the arsenal of public safety tools?
No. Denver law already forbids furnishing BB guns to minors, except that a
minor may shoot a BB gun on family property, so long as there is no risk of a BB exiting
the property.(1) It is difficult to understand how jailing parents
who let their children shoot a BB gun in the backyard will prevent crime.

Illegal "Weapons" under Proposed
Ordinances

Air Guns.Both bills include within their
scope every "air gun," "gas operated gun," and "spring gun."
As a result, minors are forbidden to possess BB guns. [BB guns may be powered by
compressed air, carbon dioxide gas, or a spring.] There is no plausible evidence that BB
guns are a serious crime or accident problem. It is silly to claim to crack down on gangs
by making it illegal for a father and son to shoot a Daisy Red Ryder BB gun in the
backyard.

Do the proposed BB gun prohibitions add anything to the
arsenal of public safety tools? No. Denver law already forbids furnishing BB guns to
minors, except that a minor may shoot a BB gun on family property as long as there is no
risk of a BB exiting the property.(1) It is difficult to understand how
jailing parents who let their children shoot a Red Ryders in the backyard will prevent
crime.

Sling shots.

The "harms to minors"
ordinance includes a prohibition on minors being given or allowed to possess "sling
shots." Is Mr. Wilson from Dennis the Menace now sponsoring criminal
ordinances? Are gang members perpetrating drive-by slingings? Are parents who give their
children sling shots to play with in the back yard really in the same category as parents
who give their children handguns with which to perpetrate robberies? The words "sling
shot" have no legitimate place in a measure purporting to deal with gun crime and gun
accidents.

Black powder and other antique guns.

Unlike virtually every gun
control law ever enacted, the ordinance makes no exception for guns produced before 1898
and replicas of such guns. Thus, it would become illegal for a person under 18 merely to
possess -- without even owning suitable ammunition -- an antique family pistol made in
1842. Likewise, minors would be forbidden to work with their parents on assembly kits to
make a replica of an old-fashioned black powder rifle. Are there reports of an epidemic of
children dying in accidents involving muskets? Are one-shot flintlock rifles joining
slingshots as the weapon of choice in drive-by shootings? Existing Denver gun control law
already defines "antique firearm, "(2)so an
amendment stating that the ordinances do not apply to any "antique firearm"
would be simple.

Paint guns.

In the past decade, the new sport of
"paintball" has become quite popular. Participants play a game of "capture
the flag" in which players remove members of the opposing team by shooting them with
a small ball of (washable) paint. Paint guns are powered by air or by carbon dioxide, and
are therefore within the scope of the terms "air gun" or "gas operated
gun." Paint guns are defined as "firearms" under the gun-lock ordinance,
even though paint guns do not use gunpowder and are therefore not propelled by any kind of
"fire." The "wrongs to minors" ordinance defines paint guns as
"weapons," despite the complete lack of evidence that paint guns are ever used
as weapons. Both ordinances would make it a crime even for a parent to lend his or her
paint gun to a 17-year-old who was driving to play paintball in Cripple Creek (where a
nationally-known paintball facility is located), or at the indoor paintball
"Adventure Game" facility in Aurora.

Water guns and other toy guns.

Some water guns, such as the
"Super Soaker" are powered by compressed air, and accordingly fall under the
definition of "air gun." Unless drive-by squirtings are a serious crime problem,
it makes little sense to make it illegal for minors to possess water guns. Nor does it
make sense to include toy guns which fire rubber darts or plastic balls within the scope
of "weapons" controlled.

Other dangerous or deadly weapon.

[Note: This provision was removed from the ordinance
before final passage.] After an exhaustive listing of
weapons both common ("pistol, revolver") and obscure ("nunchaku"
"gravity knife"), the ordinance then makes it illegal for a parent to knowingly
allow a minor to possess, under any circumstances (except with a permit or in immediate
self-defense) any "other dangerous or deadly weapon." According to state law, a
"deadly weapon" can include even a bottle of whiskey(3) or a
shoe.(4) In Colorado statewide law, there is no law against owning
bottles of whiskey or shoes, because the Colorado laws only criminalize use of a
deadly weapon in a criminal context (e.g., "assault with a deadly weapon"). The
proposed ordinance, in contrast, criminalizes mere possession of a "deadly
weapon."

Similarly, a baseball bat could be a "dangerous weapon," if swung at
someones skull. If swung at a baseball, the bat would not normally be considered a
"dangerous weapon." American criminal law leaves baseball players alone and also
punishes people who commit assault with baseball bats, because American law defines terms
such as "dangerous weapon" in the context of criminal misuse. Like the baseball
bat, the machete for backyard weeds, the axe for spontaneous elms, the spear gun for scuba
diving class, and the bow and arrow for target practice all could be used for legitimate
purposes, or could be used as criminal weapons. By making simple possession a crime --
regardless of criminal context -- the ordinance unintentionally turns into criminals every
parent who gives a child a baseball bat, automobile, rolling pin, or anything else an
overzealous prosecutor might consider a "dangerous or deadly weapon."

Obviously the City Attorneys office has better things to do with its time than
prosecute baseball bat owners. But the hope that an enforcement agent will use good
judgment in enforcing a vague and overbroad law does not render the law Constitutional.
As the United States Supreme Court wrote, "It would certainly be dangerous if the
legislature could set a net wide enough to trap all possible offenders, and leave it to
the courts to step inside and say who could rightfully be detained, and who should be set
at large. "(5) Or as the Colorado Supreme Court put it:
"[S]tandardless delegation of discretion in enforcement impinges on basic notions of
fairness at the root of the void-for-vagueness doctrine. "(6)

Conclusion:

The ordinances would be improved if the words
"air gun," "gas-operated gun," and "or other dangerous or deadly
weapon" were removed.

Practicing marksmanship with a device inserted in the gun that shoots an infrared laser,
rather than a bullet

Cleaning a gun

Touching a gun during a gun safety education class.

Helping a parent perform gunsmithing

Taking a gun to another county for hunting.

Putting away a gun that someone else had accidentally left lying around near small
children.

Participating in ROTC training, including the training conducted in the Denver Public
Schools. (The training involves single-shot .22 rifles.)

The prohibition could not be more comprehensive. The "wrongs to minors"
ordinance forbids "any person" to "provide" a "weapon" to a
minor, and requires parents to remove any "weapon" that a minor possesses.
Likewise, the "gun lock" ordinance creates a crime any time a person reasonably
knew that a minor could "gain possession" of a gun, and the minor does
"obtain possession."

Forbidden Activities under
the
Ordinances

Significantly, the ordinances are not limited to Denver residents. If a father and son
fly into Denver International Airport to go hunting in Pitkin County, and the father lets
the son place the unloaded hunting rifle in the trunk of the rental car, the father has
committed a crime.

The Parents of these Young People
Would be Criminals if They Lived in Denver

In regard to hunting, the ordinances are directly preempted by statewide law. Colorado
law authorizes persons aged 14-17 to hunt big game when accompanied by an adult, and
allows bird hunting and small game hunting by a person of any age who has passed a hunter
safety class.(7) Further, persons of any age may shoot certain nuisance
animals on their property if the animals are damaging property.(8) (In a
Denver context, the latter activity would involve shooting destructive squirrels with an
air gun.)

Hunting is quite plainly a matter of statewide concern, in part because hunters
license fees pay for preservation of game and non-game wildlife, and in part because the
availability of hunting to all residents of Colorado who can pass the safety qualification
makes Colorado a more attractive place for persons to live. Nor does Denver have any
legitimate interest in preventing hunting; licensed hunters on their way to Routt County
are hardly a threat to public safety. Because the ordinance forbids what the state
legislature has specifically authorized, the ordinance is clearly preempted by state law.

Regarding the other activities which are forbidden, it is doubtful that the government
could fulfill its burden of demonstrating that any part of the sweeping prohibition
"has some rational basis in fact and is reasonably related to a legitimate government
interest. "(9) And, as will be detailed in the next section, the
sweeping prohibitions also interfere with the Constitutional right to defend home, person
and property.

Part of the problem about banning lawful activities which promote safety training could
be cured by insertion of the following language:

Nothing in this section shall prevent any person from using a firearm or other weapon
in the course of a bona fide hunting trip; in the sporting use of such weapons, including
shooting matches or other target shooting, or trap or skeet shooting; in receiving
instruction in the safe use of such weapons; in cleaning or caring for such weapons; or
for transportation to or from any of the aforesaid activities, provided that all weapons
being so transported shall be unloaded when transported to or from such place of use.

III. Decimation of the Right to Self-Defense

The ordinances recognize that
forbidding minors to use a firearm for self-defense would be unconstitutional.
After all, Colorado’s Constitutional right to keep and bear arms refers to "The
right of no person..." rather than to "The right of no person over age 21..."
Accordingly, the "wrongs to minors" ordinance creates an affirmative defense for
situations when the minor possesses the firearm, BB gun, sling shot, paint gun,
musket, or other "weapon" "in the course of a lawful act of self-defense or
defense of his or her home or property."

Similarly, the "gun-lock" ordinance
creates an exception for situations when "The minor obtains the firearm in a
lawful act of self-defense, or defense of the minor’s home or property."

By recognizing the right to self-defense, the proposed ordinances are a considerable
improvement over the "assault weapon" ordinance, which outlaws firearms made for "antipersonnel [sic] use" and forbids
use of a registered "assault weapon" in self-defense.(10)

But having genuflected in the
direction of defensive firearms use, the proposed new ordinances place illegal
or unconstitutional restrictions

on such use.

A. Defense of Others

First of all, Colorados general law regarding use of force or of deadly law
explicitly authorizes use of force in defense of other persons.(11)
Similarly, the "make-my-day" law authorizes use of deadly force against
intruders in a home when the intruder is committing or may commit a crime, and "when
the occupant reasonably believes that [the intruder] might use any physical force, no
matter how slight, against any occupant. (emphasis added.)(12) By
limiting use of firearms only to self-defense, the proposed ordinance conflicts with state
law, and is therefore illegal.

B. Safety Training

More significantly, while the ordinances allow gun possession "in the course of a
lawful act of self-defense," they make it impossible for a minor to learn how to
engage in self-defense. If a minor grew up in the City of Denver and obeyed the
ordinances, she would never touch a gun. Then, perhaps one day when she was 17 years old
and a rapist was breaking into her home, she would have the right to get her mothers
handgun and shoot the rapist. But having never been allowed to touch a gun, how could she
be expected to use it successfully in a moment of peril? True, she might scare the rapist
just by displaying the gun, or she might get off a lucky shot. But in practical terms, the
right to bear arms for self-defense is decimated unless a person can train to
use a firearm for protection. A person's right to practice self-defense should
not depend on whether criminal has made a
verbal threat to attack immediately or at a more distant point in time, or when the person
possesses the gun for protection against attack in general. By allowing firearms
possession only during an actual act of self-defense, the ordinances certainly
"question" the Constitutional right to arms and right to self-defense.

The Constitutional defect could be cured by replacing the existing language with the
following:

This section does not apply to any possession or use of firearms for lawful defense
of home, person, or property.

The reference to "lawful defense" allows enforcement of the ordinance against
persons, such as gang members, who possess firearms for unlawful defensive
purposes, such as guarding a crack house.

IV. The Ordinances Add Nothing Substantive to Existing Criminal
Law

The new ordinances crack down hard on legitimate gun users who participate in target
competition, hunting, self-defense training and other lawful activities. Is this crackdown
a necessary price for adding new tools to the criminal justice system? Clearly not.
Corrective amendments would leave the substance of the proposed ordinances intact, while
offering at least some protection to the rights of innocent persons. But with or without
amendments, the two ordinances add almost nothing to the law enforcement arsenal. Existing
law already covers what the ordinances purport to accomplish.

A. "Harms to Minors" Bill

Can law enforcement officers currently take into custody a juvenile who walks down the
street carrying a weapon? Absolutely. Current Colorado law forbids carrying a concealed
firearm (loaded or not) on public property without a permit. (15)
Current Denver law forbids carrying a concealed or unconcealed firearm without a permit.(16) [The current Denver police chief does not even make permit
applications available to anyone except ex-police and a small group of political
influentials. In violation of the Denver concealed weapons ordinance, the chief has not
promulgated regulations regarding concealed weapons permits, and does not investigate
applicants as the City Council has required. (17)]

Similarly, existing federal and state laws criminalize simple possession of firearms in
connection with a crime. Thus, a 17-year-old gang member who, for example, possesses a gun
with which to guard a crack house is already guilty of serious state and federal crimes.
The proposed ordinance does not add anything to law enforcement tools.

What about provisions requiring parents to remove firearms/sling shots/water pistols
from the possession of children, or turn the children into the police? First of all,
existing criminal laws already cover persons who engage in criminal conspiracy or who acts
as accessories to crimes.(18) Accordingly, there are ample tools to
prosecute parents who give their children weapons for criminal purposes.

In addition, the Denver Code already requires parents (and anybody else) who are
aware of illegal activity by anyone to report the person to the police. Section 38-39 of
the Denver Code states:

it shall be the duty of all persons who witness or have reason to believe that a
provision of this Code is being or has been violated promptly to report the same to a
police officer...

Since the Denver Code already requires everyone to inform on everyone else, adding a
provision specifically requiring parents to inform on their children does provide give the
police any additional tools.

In sum, Bill 427 amounts to little more than the City Council stamping its feet. The
bill criminalizes what is already criminal, as if restating the criminal law in revised
language would somehow increase its force. The same effect could be achieved by printing
criminal code provisions in boldface type. Adding nothing to the law enforcement arsenal,
Bill 427s main effect is to criminalize a vast amount of innocent activity, such as
shooting BR guns, learning how to handle a firearm safely, or playing with a water pistol.

B. Gun Lock Bill

Is it legal in Denver to leave a loaded firearm within easy reach of a child who might
misuse it? Absolutely not. "Reckless endangerment" is already a crime under
Colorado law.(19) And Denvers Code already makes it a
crime to knowingly, intentionally, or negligently cause the life of a minor to be
endangered, or cause the physical well-being of a minor to be endangered.(20)

Accordingly, there is already legal authority to prosecute a person who leaves a loaded
revolver near a toddler, just as there is legal authority to prosecute a person who leaves
poison near a toddler.

Councilperson Reynolds, the sponsor of the gun-lock bill states "You have a
responsibility, for example, if you have poison, for storing it safely... .1 dont
see guns a whole lot differently."(21) Councilperson
Reynolds is correct; owners of guns and poison should store the items safely. Current
law requires safe storage, by criminalizing negligent storage that endangers a minor.

What constitutes negligence depends on the facts of the particular situation. Putting
rat poison within easy reach of a playpen constitutes negligence. Giving a 16-year-old a
box of rat poison and telling him to put it near the rat-hole in the basement is not
negligent.

The proposed gun lock bill makes no distinctions based on the facts of the situation.
The bill treats the placing of a loaded gun near a playpen the same as giving an unloaded
gun to a 15-year-old while instructing her about firearms safety.

Parents who teach gun safety to their children are criminals in Denver

Notably, Denver has enacted an ordinance dealing with toxic inhalants (such as certain
cleaning fluids, hair spray, glue, and paint), which are estimated to be abused by about
10% of 8th graders, and which can cause permanent brain damage or death.(22)
The ordinance forbids sale of toxic inhalants to minors,(23) just as
sales of firearms to minors have been illegal since 1968.(24) The law
also forbids misuse of toxic inhalants, just as severe laws already forbid firearms
misuse.(25) But the Denver toxic inhalant law does not require
that all toxic inhalants always be locked up -- even though toxic inhalants, unlike guns,
never need to be deployed on a few seconds notice for defense of life. Nor does the law
forbid minors to possess toxic inhalants under legitimate circumstances; the law does not
turn parents who give their children some furniture polish for polishing the furniture
into criminals.

Rather than reflecting a legitimate attempt to prevent accidents, the gun lock bill
would give Denver the harshest prohibition in the United States regarding minors and guns.
If enacted in its current form, the bills overbreadth and gross interference with
legitimate and Constitutionally protected activities will likely lead to its being
overturned in the Constitutional challenge that will surely result.

A "safety" bill which requires only guns, but not other dangerous items such
as inhalants, always be locked up is similar to law which applies a tax only on
newspapers. While it might be Constitutionally permissible to tax all businesses, or to
require safe storage or all dangerous items, it is not permissible to single out newspaper
publishers or gun owners for unique punitive legislation. In striking down a law that
imposed a 2% advertising revenue tax on large-circulation newspapers, the United States
Supreme Court wrote:

It is not intended by anything we have said to suggest that the owners of newspapers
are immune from any of the ordinary forms of taxation... But this is not an ordinary form
of tax It is bad, because in the light of its history and its present setting, it is
seen as a deliberate and calculated device in the guise of a tax to limit the circulation
of information...

Grosjean

v. American Press Co., 297 U.S. 233 (1936). The Grosjean case
suggests that a punitive and extreme gun-lock bill, which, in the guise of preventing
accidents, abolishes all almost all legitimate gun usage by minors, will likely be found
unconstitutional.

V. Constitutional Guideposts

Courts have not sketched out any
theory suggesting that minors have no right to arms. Courts have clearly stated
that the right to arms is not "absolute," but the fact that bearing arms, like
speech, is not an absolute right hardly justifies the wholesale destruction of
the rights of minors which the two proposed ordinances would accomplish.

If courts are guided by the actual language of the Constitution, the above ordinances
will be found unconstitutional, since Colorados Constitutional right to keep and
bear arms refers to "The right of no person..." and does not authorize
discrimination against minors.

If courts also look to the intent of the framers of the Constitution, the two
ordinances will also be stricken. Virginia Senator Richard Henry Lee, who "was
largely responsible for the adoption of the first 10 amendments to the
Constitution,"(26) had this to say
about gun ownership by young people: "to preserve liberty it is essential that the whole body of the people
always possess arms and be taught alike, especially when young, how to use them."(27)

In one of the first cases interpreting the Second Amendment, the Georgia Supreme Court
wrote:

Nor is the right in this discussion less comprehensive or valuable: "The
right of the people to bear arms shall not be infringed." The right of the whole
people, old and young, men, women and boys, and not militia only, to keep and bear arms
of every description, and not such merely as are used by the militia, shall
not be infringed, curtailed, or broken in upon, in the smallest degree... (28) (emphasis in original)

Of course a Georgia opinion is not binding law in Colorado, and the case opinion is
quite old. Nevertheless, the legal reasoning applied in Georgia is easily applicable to
the Colorado Constitution, especially since the Colorado Constitutions right to bear
arms is stated so unequivocally: "The right of no person to keep and bear arms..,
shall be called in question."

17. Denver Code §38-116.5. The ordinance states that
"The chief of police shallpromulgate rules and regulations to
implement the issuance of concealed weapons permit [sic], providing for, among other
things, a background check of each applicant, a determination of the need of each
applicant to be issued a concealed weapons permit, and a determination of the proficiency
of each applicant in the care and use of any weapon applicant may carry." (emphasis
added.) Discussions of police failure to apply the City Councils carry ordinance are
contained in the plaintiffs brief in Miller v. Collier, no.
92CA2030 (Cob. Court of Appeals, 1993).

27.Letters from the Federal Farmer to a Republican (New York,
May 1788) [pamphlet], letter XVIII, reprinted in The Origin of the Second Amendment, ed.
David A Young (Ontanagon, Mich.: Golden Oak Books, 1991), p. 355. Also reprinted in An
Additional Number of Letters from the Federal Farmer to the Republican (Chicago:
Quadrangle, 1962), pp. 168-70.

DAVID B. KOPEL is Research Director at the
Independence Institute. His book The Samurai, the Mountie, and the Cowboy: Should
America Adopt the Gun Controls of Other Democracies? (Buffalo, NY: Prometheus Books,
1992) was chosen to receive the Comparative Criminology Book Award by the American Society
of Criminologys Division of International Criminology.

JON CALDARA, current President of the Independence Institute, drew the cartoons
included in this Issue Paper. Creator of the nationally-syndicated "B Street"
comic strip, Mr. Caldara is a Boulder businessperson, and author of the Independence
Institute paper Nothing is Funny: The True Costs of Political Correctness.

Make a donation to support Dave Kopel's work in defense of constitutional
rights and public safety.

Nothing written here is to be construed as
necessarily representing the views of the Independence Institute or as an
attempt to influence any election or legislative action. Please send
comments to Independence Institute, 727 East 16th Ave., Denver, Colorado 80203 Phone 303-279-6536. (email)webmngr @ i2i.org